Shell Oil Co. v. Haunchild

• Decision Date: 10 October 1950
• Docket Number: No. 33855,33855
• Citation: 203 Okla. 456,223 P.2d 333
• Parties: SHELL OIL CO., Inc. et al. v. HAUNCHILD et ux.
• Court: Oklahoma Supreme Court

Page 333

223 P.2d 333

203 Okla. 456

SHELL OIL CO., Inc. et al. v. HAUNCHILD et ux.

No. 33855.

Supreme Court of Oklahoma.

Oct. 10, 1950.

Syllabus by the Court.

1. A verdict may properly be predicated on circumstantial evidence, but it cannot be based upon mere speculation and conjecture.

2. Essential facts may be established by circumstantial evidence through permissible inferences drawn from proven facts but not through inference upon inference nor presumption upon presumption.

3. So to establish a theory by circumstantial evidence that it may be accepted as a fact proved, the known facts relied upon as a basis for the theory must be of such nature and so related to one another that the only reasonable conclusion that may be drawn therefrom is the theory sought to be established.

Geo. W. Cunningham, Jesse M. Davis, Joseph W. Morris, Gordon Watts, all of Tulsa, and R. O. Wilson, of Ponca City, for plaintiffs in error.

Irving D. Ross, David Ross, both of Newkirk, and Roy Cox, Charles Buhrman, both of Blackwell, for defendants in error.

GIBSON, Justice.

This is an action by defendants in error against Shell Oil Company, Continental Oil Company, and others, to recover damages arising from the salt water pollution of the soil of plaintiffs' farm alleged to have been caused by defendants. Plaintiffs were awarded judgment in the sum of $1,000 against the defendants named and they appeal therefrom. The parties will be referred to as they appeared in the trial court.

Plaintiffs' farm, consisting of 90 acres and described as E 1/2 SW1/4 Sec. 8, Twp. 28 N., R. 1 W. and SW 1/4 SE 1/4 NW 1/4 of said section, is located within an oil field know as South Braman. For years oil, accompanied by salt water, had been and was, at the time of the injury complained of, being produced on plaintiffs' farm and the adjoining acreage. Defendants operate an oil and gas lease on the land adjoining plaintiffs' farm on the north and thereon, about 800 feet north of plaintiffs' 10-acre tract, there is a well known as the Horn well which is used by defendants for disposal of salt water by pumping same under pressure into the Tonkawa Sand at depth of 2,400 feet. The Horn well was converted into a disposal well in 1929 by Comar Oil Company, defendants' predecessor. Underlying the area of the oil field involved is a water sand which is 15 feet below the surface at the Horn well and 14 feet below at plaintiffs' 10-acre tract whereon plaintiffs have a well through which water was obtained for domestic purposes. In 1932 plaintiffs recovered judgment in damages against the Comar Oil Company for the permanent pollution of said water sand under the area of their farm. In 1932, by reason of the condition of the well, salt water injected therein arose to the surface around the casing and stood in the cellar. To rectify the condition cement was forced down through the inner casing until it came up to the surface between the inner and outer casings and between the casings and the wall of the hole. It is recognized by plaintiffs that the effect of the cementing was to prevent any further leak of salt water from the time of the cementing until the occasion involved herein.

The present action was instituted February 7, 1947, against defendants named and others operating leases on the northeast and southeast quarters of said Section 8. It is alleged in the petition that the defendants and each of them have permitted salt water to escape upon the surface of the land the drainage of which is over the farm of the plaintiffs; have deposited same in ponds where they percolate into the soil and the underlying water strata; and have pumped same into wells with such force that the salt water in the underground sands and shales is forced to the surface, and that as a result thereof the soil of an area in the south 40 acres of plaintiffs' farm was permanently destroyed. Defendants, other than those appealing, went out of the case when their demurrers to plaintiffs' evidence were sustained.

Defendants make two contentions. One, that there is no evidence establishing a causal connection between the acts of defendants and the injury of which plaintiffs complain. The other, that plaintiffs' action is barred by the statute of limitations. We consider them in the order made. There is no direct evidence of the fact of salt water escaping from defendants' well into the water sand, and the question is whether there is competent circumstantial evidence from which such fact could be reasonably inferred.

Plaintiffs' south 40, whereon the damage was sustained, except the eastern part thereof, is bottom land and is of approximately 10 feet lower elevation than the land north and east thereof, and said water sand lies about 4 feet below the surface. The surface drainage from the lands north and northeast is over said 40-acre tract. Extending east and west along the north line of the 40 is an open drainage ditch which connects with a similar ditch extending southward from the northwest corner of the 40. The ditches carried salt water that escaped from salt water ponds, and the north-south ditch was of sufficient depth to touch said water sand, and in 1946 water was seeping out of it into the ditch. The area damaged consists of 15 acres lying in the northwest part of the 40 and abuts said ditches. There are two producing wells upon plaintiffs' farm, one in the southeast corner of the 10-acre tract and the other directly south thereof on the north 40. The salt water produced is deposited in a pond on the southeastern part of the north 40. The salt water produced on the northeast quarter of the section is deposited in three ponds located in the southwest quarter thereof. Plaintiff W. A. Haunchild testified that his pond was about 7 feet deep and those on the northeast quarter 8 feet or more; that the latter ponds did not overflow; that the salt water flowed therein, apparently constantly, in a stream equivalent to that of a good hand pump. When asked what became of it, he replied 'surface sand.' The natural drainage from these ponds and the one on plaintiffs' farm is to the east-west ditch mentioned. Salt water was being produced on the land adjoining plaintiffs' land on the west but there is no evidence of the manner of the disposal thereof. There is no evidence concerning the alleged operations on the southeast quarter of the section or of the operations on the land south of plaintiffs' farm.

Said plaintiff testified that during the early part of 1945 salt water bubbled up out of the soil over the said damaged area and ran off the surface into the ditches and thence south to the river; that said bubbling continued for a period of at least three months; that before the bubbling ceased one Robinson, a claim agent of defendant, noted the condition and inquired whence the water came and that he replied that he was satisfied that it was coming from defendants' disposal well by reason of the pressure applied therein, that some days later defendants had a crew working at the well with baler and other tools for about five days.

The defendants used the Horn well for disposal of salt water produced on the northwest quarter of said section and other lands and same was introduced into the Tonkawa Sand through the Horn well at a pressure to about 500 pounds. During December 1944 the pressure required increased to as much as 900 pounds, and the resistance was sufficient to break the pump. In the latter part of that month they cleaned out the well and in January they acidized the Tonkawa Sand to insure greater porosity, and thereafter the salt water was injected at a pressure usually about 500 pounds. The uncontradicted evidence is that the increased pressure was due to accumulation in bottom of the well of a deposit that salt water leaves in the lines as it passes through. Throughout that period the pressure was constant and remained so when not pumping. The uncontradicted testimony of defendants' witnesses is to the effect that when a leak occurs the pressure will go down.

C. A. Stoldt, civil engineer, testifying as an expert witness for plaintiffs, in answer to the question whether water injected under pressure into the water sand at the Horn well could cause bubbling of water therefrom in the damaged area, replied: 'Assuming that there was pressure applied up here to the water in that surface water sand the water, or I mean sand that carries water close to the surface of the ground, assuming there was pressure applied up there it could cause a spring to break out or seep out most any place in the vicinity of that.'

On cross-examination he testified further as follows:

'Q. If that pressure had been maintained constantly from 1932 until 1935 and there had been no springs show up at any time and shortly after 1945 the springs appeared, would you say that was coming from pressure and, if so, where? A. It would definitely be coming from pressure. That pressure could have been caused probably from a lot of things. But the only unusual thing apparently that I know anything about--there hasn't been any other mentioned--is that the brine was being put in this well under pressure and if springs, if it was a normal season and springs that had never existed broke out down here I would have to assume it was...